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04 June 2024 | Story Dr Larisse Prinsen | Photo Supplied
Dr Larisse Prinsen
Dr Larisse Prinsen is Senior Lecturer in the Department of Public Law at the University of the Free State (UFS).

Opinion article by Dr Larisse Prinsen, Department of Public Law, Faculty of Law, University of the Free State


On 15 May 2024, the National Health Insurance (NHI) Bill was signed into law by President Ramaphosa during a public ceremony. This did not come as a surprise as Minister in the Presidency, Khumbudzo Ntshavheni, had already stated in January that enactment would take place before the 2024 elections. Universal access to health care is an ANC promise, after all, which has led to some calling this public display – as well as the remarks made before the signing – electioneering, considering the closeness of the election to be held at the end of the month.

Now that the Bill has become an Act, however, its actual real-life implementation may be stalled for some time. As the President himself stated during the signing ceremony, the Act is to be implemented in stages. This could potentially take many years if the example of the previous, pivotal piece of health-related legislation, the National Health Act – which took more than a decade to become fully operational – is anything to go by. Each stage of implementation will also bring the potential for a slew of unique legal challenges for the Act and its implementation.

Legislation that could combat the implementation of the NHI Act

There is also the issue of the missing money bill. An Act such as the NHI Act, which has massive financial and economic ramifications, should be accompanied by a money bill drafted by the National Treasury, setting out the financial aspects of the primary Act. So far, no money bill has been drafted, which pauses the implementation of the NHI Act. Should the implementation of the NHI proceed without clarification of the rand-and-cent aspects, legal challenges may be brought.

Further pieces of legislation that could possibly be used to combat the implementation of the NHI Act include the Consumer Protection Act, which aims to establish and protect consumer rights, such as the right to quality goods and services and to select the supplier of your choice; the Competition Act, which fights against restrictive practices and the abuse of a dominant position; or the Protection of Personal Information Act, which may have implications for the large gathering of personal information that will be necessary for the NHI system to be workable. Another notable piece of legislation to consider is the Promotion of Administrative Justice Act.

Various constitutional challenges

Various constitutional challenges are also rumoured to be in the pipeline, with Solidarity, the Democratic Alliance, the Health Funders Association, the South African Medical Association, the Board of Healthcare Funders, the South African Health Professionals Collaboration, as well as Business Unity South Africa all having previously suggested that they may consider, or outright declaring that they will take legal action against the Act as soon as Ramaphosa’s ‘special pen’ touches paper.

The NHI Act may be constitutionally challenged on various grounds. To start with, there are concerns regarding the rule of law’s requirement that the law be clear, unambiguous, and not vague. The lack of clarity on the benefits and cover provided by the NHI scheme has raised many issues. Not only is the ‘what will be covered?’ but also the ‘who will be covered?’ unclear. This not only constitutes legislative vagueness, but this uncertainty also makes it almost impossible to apply our system of checks and balances whereby a determination may be made whether the State is truly adhering to its mandate in Section 27 of the Constitution to take progressive steps to realise the rights enshrined in the Bill of RightsLitigation may also be instituted based on arguments that Section 33 of the NHI Act, which may lead to the demise of medical aid schemes, is unconstitutional and that it limits the constitutional provision of access to health-care services. In terms of the limitation clause of the Constitution, a limitation is only justified when, among other requirements, there are no less restrictive measures by which the purpose of the limitation may be achieved. Challenges could also be brought against the NHI Act based on nonadherence to requirements of procedural fairness and the principles of participatory democracy, as the consultation processes preceding the enactment have largely been labelled as mere lip service to consultation requirements without having seriously considered the various concerns, objections, submissions, and comments, and even blatantly dismissing them. Other possible causes of action are related to the infringement of the right to autonomy, privacy, association, freedom of expression, as well as freedom of trade, occupation, and profession.

Law and health care intersect

As the ink dries on the NHI Act, the stage is set for many legal dramas to unfold, indicating that the Act’s destiny will be decided by a gavel rather than a pen. While the ceremonial signing marked a historical milestone in the attempt to promote equality in South Africa, the road to implementation is fraught with challenges. With no accompanying money bill in sight and a landscape ripe for constitutional scrutiny, the Act's journey forward is likely to be tumultuous. As stakeholders gear up to challenge its provisions on various fronts – from procedural fairness to constitutional rights – the NHI Act is poised to become a battleground where the nuances of law and health care intersect. As the curtains rise on this legal saga, the true test of the Act's viability and constitutionality awaits.

More institutional experts can be found at: https://www.ufs.ac.za/media/leading-researchers

News Archive

Significant support for Student Safety March in Bloemfontein
2017-07-28

 Description: Student Safety March Prof Petersen Tags: Student Safety March Prof Petersen 

SK Luwaca, UFS SRC President; Thapelo Ngozo,
CUT SRC President, and Prof Francis Petersen,
UFS Rector and Vice-Chancellor, during the handover of the
memorandum at the Bram Fischer Building.
Photo: Johan Roux

The University of the Free State (UFS) and the Central University of Technology (CUT) united in a Student Safety Awareness March, which took place on Thursday 27 July 2017 from the UFS Bloemfontein Campus to the Bram Fischer Building.

The peaceful march had a turnout of approximately 1 500 students and staff from both institutions, led by the Student Representative Councils (SRC) from UFS and CUT. The purpose of the march was to hand over a memorandum to the Provincial Commissioner, Lieutenant General Lebeoana Tsumane, who acknowledged it on behalf of Mr Sam Mashinini, MEC for Police, Roads, and Transport in the Free State. The memorandum includes students’ demands regarding safety around student residential areas and general student safety in the city.

Prof Francis Petersen, UFS Rector and Vice-Chancellor, who – together with other members of the senior leadership group – was part of the march, says he is very impressed with the outcome of the march and the participation rate of both staff and students, as well as the joint efforts between the UFS and CUT to arrange the march.

Prof Petersen says, “There are public spaces where our students feel unsafe, and we would like the city and the province to seriously look into that and work with us to try and see if we could make those spaces safe.

A week filled with safety activities
The march was part of the Safety Week taking place from 24 to 28 July 2017, during which the UFS SRC, together with other stakeholders, took part in several activities on and off the Bloemfontein Campus. These included door-to-door visits to student homes and residences on and around campus, awareness campaigns at all the gates of the campus, and a Safety Dialogue held on 26 July 2017 at the Equitas Auditorium on campus.

The aim of the Safety Week was to focus on informing, educating, and encouraging students as well as the Mangaung community at large, to work together in creating a safe environment for students. The week started with the roll-out of an awareness campaign titled Reach Out, which was set to bring students and the community of Mangaung together to help decrease the number of violent crimes faced by students off campus. The communication plan included safety messages, using outdoor billboards, posters on lampposts around the residential student areas, local community radio stations, campus media, and the university’s social media platforms.

 Description: Student Safety March  Tags: Student Safety March  

UFS and CUT students and staff, occupying the streets of
Bloemfontein during the Safety March.
Photo: Johan Roux

Accreditation of off-campus accommodation service providers
Over and above the Safety Week and safety awareness march, the university has initiated a number of other projects as part of its student safety strategy. This includes a process to accredit off-campus accommodation service providers in Bloemfontein who provide accommodation to students. The decision to accredit these service providers comes from a concern by the university management about the safety of students and the conditions under which some of our students live in off-campus accommodation. The accreditation process entails a list of primary requirements, drafted with the cognisance of the Mangaung Metropolitan Municipality and the SRC, in terms of off-campus accommodation to which private providers must adhere in order to be accredited by the university. The requirements are in line with the Policy on the Minimum Norms and Standards for Student Housing at Public Universities (Government Gazette 39238, dated 29 September 2015).

Transport to and from campus
Another project to be initiated on 31 July 2017 is a transport pilot project with Interstate Bus Lines to assist students with transport and access to the Bloemfontein Campus. The route includes various stops in the areas surrounding the campus, as well as a hop-on/hop-off route within the campus.


Released by:

Lacea Loader (Director: Communication and Brand Management)
Telephone: +27 51 401 2584 | +27 83 645 2454
Email: news@ufs.ac.za | loaderl@ufs.ac.za
Fax: +27 51 444 6393


 

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